The Canons of Construction for Indian treaties, a set of rules used by the Supreme Court, consists of three main guidelines. The Canons of Construction state that any ambiguities in treaties must be decided to the benefit of the tribes, that treaties must be interpreted as Indians would have understood them at the time they were signed, and that treaties must generally be applied liberally in favor of Indians. The canons were first introduced by Justice Marshall in his decision in Worcester v. Georgia. Marshall and many other justices who have upheld the Canons believed that they were necessary to make up for the disadvantaged position Indians and tribes were put in during the creation and ratification of the many treaties written by the US government. While the Canons were first introduced in Worcester v. Georiga, in “Not Much Less Necessary,” Michael Blumm and James Brunberg state that “The seeds of the canons were sown in Chief Justice Marshall’s interpretation of the Hopewell Treaty… but gained prominence.. .in the Winans case” (520). However, considering the cases we have discussed post-United States v. Winans, such as Oliphant v. Suquamish or Tee-Hit-Ton Indians v. United States, it does not seem to me that the Canons of Construction have had a substantial positive impact on Supreme Court decisions involving Indian policy and Indian treaties.
So far in this course we have examined many cases in which treaties were not followed in accordance with the Canons of Construction. We have read about very few cases in which ambiguities were decided in favor of tribes, and probably even fewer treaties that were generally interpreted to benefit Indians. Because so much of the Federal Government’s policy in regard to Indian Law has roots outside of the constitution, it is important that there is a consistency in how the courts and the congress design and implement Indian policy. However, consistency has never seemed a priority to the government in its dealings with Indian Policy. For example, once the government decided on an official policy of assimilation, it disregarded the Canons almost completely, creating and enforcing a number of policies while blatantly ignoring very clear treaty language. The impact of this abandonment of the Canons was a severe loss in tribal sovereignty.
The Canons of Construction could be part of an effective approach to Indian policy and treaty enforcement, but instead they seem to have been all but discarded in most cases. In theory, the Canons of Construction could be an excellent tool for Congress and the Supreme Court. They give a constant set of guidelines for interpreting unclear laws and policies, and, just as importantly, help ensure that while Congress maintains the power to create and dissolve tribal rights and policies, it does so in a way that is explicit and clear-cut.